Employee with Undisclosed Neurodiverse Condition - Employer Implications

Posted in : Seamus Says - Employment Law Discussion on 2 October 2020
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Neurodiverse conditions

Scott: So what are the implications for employers if the information is held from them by the employee and they don't know that somebody is autistic or whatever it happens to be on the neurodiverse range? And what difficulties might an employer have if it comes to other employees who have difficulties? We have a question coming up about that, but if the employees don't know that somebody is disabled and the employer doesn't know that somebody is disabled, where does that leave the employee on the spectrum and where does that leave the employer?

Seamus: Well, I suppose that the case law is developing in relation to this specific area, and as the case law develops, it appears to be certainly that it seeks to protect the employee. I think there's definitely a fine balance of . . . I could very much understand why a neurodiverse employee would not want to disclose to an employer that they have a certain condition.

You could imagine yourself as not wanting . . . or feeling that they've got a job, they're pleased to have the job, and then they don't want to advise the employer that they've got a condition that may impact upon their ability to do the job. It's really that point that Louise was saying, about they're having to work at 120% in order to keep up and that feeling of having to keep up all the time.

So, look, it is difficult. The employer is in a difficult position if they're not aware of the condition. But I think the key aspect has to be that there needs to be more training. There needs to be more awareness for employers, because if we're moving in a direction where ultimately the courts and tribunals are saying that the responsibility is on the employer in those circumstances, even if they're not aware . . .

There's the local case, it's a July '19 case. I think it was an Equality Commission backed case that ended up at the Court of Appeal. I would call it Meier v BT, and this was a situation that's slightly different in the sense that it was around a recruitment process.

But the question considered by the Court of Appeal was whether there had been a failure to make reasonable adjustments by an employer in relation to a job applicant that had Asperger's Syndrome. And BT were the recruiter. They were using an online SSP test, as it was known, as part of the recruitment process, and the applicant received a low score and was rejected for the job.

He argued then that the test was inappropriate for people that were on the autism spectrum and that reasonable adjustments should have been made. BT's sort of response to that was that the test was part of their minimum requirements for the role and that the applicant should have made them aware of what adjustments that he required.

But the Court of Appeal said, "That's not so", and it held that the SSP test was a form of psychometric test, that the questions could be interpreted as ambiguous, contradictory, and requiring judgements to be made on missing information.

And they said that the applicant's condition meant that he was placed at a substantial disadvantage as he was unable to, and I'm quoting this, "read between the lines", and that was part of the condition. The court actually held that the onus was on BT to identify reasonable adjustments that were required and it wasn't for the employee to inform BT of those.

So, that case, it's a local case, it's a recent case, and I think that it does show the direction that the courts and the tribunals are moving in here, which is to protect the neurodiverse employee and even at a point where the employer wasn't aware.

So key for all of this has to be that there has to be formal training in place for managers. Managers need to be able to . . . where conditions maybe haven't been disclosed, they need to be aware so that they can spot where issues are going to arise.

I don't know whether Louise would agree with me on this, but most of these problems seem to come to a point where issues haven't been disclosed and the employee ends up in a performance meeting or they're looking at some sort of PIP.

And then there's a panic where the employee does make a disclosure and then the employer is panicked by the fact that they've taken the steps and it can be looked at punitive, or are they discriminating against the employee because of steps they've taken?

So it's a balance because you understand the sensitivities on the employee's side, and I think that the employer has to open their mind. They have to have had appropriate training. They have to have an awareness and understanding so that they can spot these issues arise and deal with them before they get to a position whereby they're having to go down performance improvement programmes and things like that.

Scott: Can I maybe just come in there, Seamus, because there are a couple of questions that are coming in. But effectively, I think what you're saying there is that the courts are saying that if the employer didn't know, they should have known. And in the case of BT, the fact that they're setting this psychometric test, they should know that there will be neurodiverse claimants or applicants coming in and, therefore, they would have to make reasonable adjustments knowing that those people are coming forward.

That seems to be the thrust of what you're saying there, that if you've got an employee that you think they're neurodiverse, then you should be aware or should do something to raise that and maybe check and not just assume that they're not because they haven't told you.


This article is correct at 02/10/2020

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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